The intersection of criminal law and immigration law

ICE enforcement actions: Something old, something

ICE is in the streets. President Trump is tweeting away. And rumors are flying. None of this is surprising.

On the campaign trail, President Trump turned his consistent demonization of migrants into a cornerstone of his victory. Since taking office, he has not relented. On Sunday, the President tweeted, “The crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!”

Meanwhile, word-of-mouth reports and social media are supplying a stream of reports about immigration enforcement actions. Many turn out to be nothing more than rumor. Some are not. Last week, ICE detained more than 680 people in a coordinated multi-state campaign. Like President Trump’s tweet, ICE claims that it “targets convicted criminals and others who are illegally present in the United States.” In a statement, Secretary of Homeland Security John Kelly wrote, “Of those arrested, approximately 75 percent were criminal aliens, convicted of crimes including, but not limited to, homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.”

One of those was Guadalupe García de Rayos, the Arizona mother who was deported despite civil disobedience by supporters. Back in 2008 García de Rayos was arrested and subsequently convicted of felony criminal impersonation for using a social security number that belonged to someone else. After years of fighting her removal in immigration court, she finally lost in 2013. Instead of being removed, though, she was allowed to remain in the United States so long as she checked in with ICE as instructed. She did so without incident until Wednesday.

In the last week confirmed reports also indicate that ICE has appeared at homes in search of specific individuals. While there, they have arrested others who are potentially removable. Advocates also report that ICE is using mobile biometric gear to quickly identify potentially removable individuals. This technology is a relatively new addition to ICE’s enforcement chest. ICE developed an iPhone app in 2016 that allows every agent to perform fingerprint searches from anywhere in less than one minute. The app, called the Eagle Directed Identification Environment (EDDIE), compliments ICE-issued iPhones.

This is all enough to further drive fear into the heart of immigrant communities. That is the point. After a presidential campaign grounded in virulent anti-migrant rhetoric, it won’t take much for the Trump Administration to convince migrants that ICE is around every corner.

These are not new developments. The Obama Administration famously removed over 2.7 million people and returned another 2 million through expansive use of DHS resources. For years, ICE operated the Secure Communities program and used 287(g) agreements to tap local police as its front-line eyes in the nation’s interior as well as in border communities. The agency vigorously relied on local law enforcement agencies to detain potentially removable individuals until courts concluded that the immigration detainers underlying this tactic were plagued with constitutional and statutory problems. At the same time, federal prosecutors emphasized use of federal laws criminalizing certain immigration activity—especially entering the United States without the federal government’s permission, a federal misdemeanor, or doing so after having previously been deported, a federal felony. By the mid-point of President Obama’s second term, just shy of 100,000 people were booked into the custody of the U.S. Marshals Service on suspicion of having committed a federal immigration crime, far in excess of pretrial detention for any other type of crime.

President Obama justified his Administration’s immigration enforcement practices by claiming that it was a reasonable, tailored approach intended to make the United States safer. As President Obama famously explained in November 2014, “we’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ll prioritize, just like law enforcement does every day.”

The Obama Administration’s rhetoric frequently deviated from the reality. In fiscal year 2010, for example, fifty-seven percent of people removed by DHS had not been convicted of a crime. Of those who had been convicted of something, 18.7 percent of people removed by DHS had been convicted of nothing more serious than an immigration crime and another 18.3 percent nothing worse than a traffic offense. In FY 2014, about sixty percent had not been convicted of anything. Of those with convictions, 31.6 percent had nothing worse than an immigration crime. In FY 2015, the last year for which data are available, DHS removed 333,341 people. Of these, 193,391 (fifty-eight percent) had no conviction and 139,950 (forty-two percent had a conviction for some crime. Data about specific convictions has not yet been made publicly available. Over the course of President Obama’s first seven years in office, 56.4 percent of the people removed had no conviction of any kind. As the chart below illustrates, this accounted for approximately 1.6 million of the 2.7 million removed from FY 2009 to 2015.

So far, President Trump’s emphasis on “criminal aliens” has a familiar ring. For that reason alone, we should be skeptical that recent enforcement actions justified under the banner of public safety are actually improving conditions in the United States (even putting aside historically low crime rates). The deportation of Guadalupe García de Rayos illustrates this point. She is undeniably a “criminal alien” as government officials have used that term for years. Despite her felony conviction, she posed little threat to the United States. Her conviction resulted from a check of employment records at the Arizona company where she worked. After her deportation, the mayor of Phoenix, wrote on Twitter, “She has been peacefully living and working in the Valley for more than two decades, and by all accounts was building a life and contributing to our community. She has now been torn apart from her family. ” Like the criminal aliens targeted by the Obama DHS, the criminal aliens of the early Trump-era DHS seem like a rather ordinary bunch.

For all the similarities, there is a uniquely pernicious edge to immigration enforcement under President Trump. Last week’s enforcement actions suggest an uptick in ICE-led apprehensions. According to an analysis by the Transactional Records Access Clearinghouse at Syracuse University, ICE apprehended about 1,250 per week during the Obama years. Of those, only about 300 resulted from direct ICE enforcement actions: efforts by its 129 “fugitive operations teams,” people arrested from some type of alternative to detention, or those detained off the immigration courts’ non-detained docket.

Moreover, while President Obama’s policies harmed innumerable families, President Trump’s goal seems to be to instill fear in migrants. So far he’s succeeded. Like many others who interact with migrants, I have seen and heard this fear countless times since November. This fear expanded after President Trump’s inauguration and exploded since January 25 when the President issued the first of this three immigration-related executive orders. While much has been written about the anti-refugee order, the other two executive orders are also sweeping. The border policing order threatens to expand the ICE immigration detention regime even beyond its current historically unparalleled size. And the interior enforcement order—premised as it is on the myth that “[m]any aliens who illegally enter the United States and those who overstay…present a significant threat to national security and public safety”—treats an enormous range of the migrant population as an enforcement priority: from the permanent resident convicted of a low-level drug offense to the unauthorized migrant who hasn’t been convicted of anything.

It’s no wonder that migrant communities and their allies are on alert. Anything else would be foolish. For DHS to claim that verbalized fears of immigration enforcement actions amount to “irresponsible, baseless fear-mongering,” as DHS spokeswoman Gillian Christensen did, is disingenuous. Of course people are going to see ICE agents even where none are present. The President keeps going out of his way to scare people into thinking that they or their loved ones are next on ICE’s list of newly expanded enforcement priorities. And with 40,000 employees as his disposal (not counting cooperative local law enforcement officers), he does have the ability to throw the nightmare of the last eight years into overdrive.

Migrants and their allies know this. That’s why they are resisting every step of the way. I expect we will see a lot more of that.

Trackbacks

[…] deported more people than any previous presidential administration. From 2009 to 2015, DHS removed 2.7 million people. During the same period, DHS detained roughly 400,000 people every year while they waited to learn […]

February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.